Citation: 2020 RLLR 90
Tribunal: Refugee Protection Division
Date of Decision: June 23, 2020
Panel: Reisa Khalifa
Counsel for the Claimant(s): Luciano Mascara
RPD Number: MB7-17566
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000009-000019
REASONS FOR DECISION
 This is the decision of the Refugee Protection Division in the claim for refugee protection of [XXX] (the Claimant), citizen of Haiti. He is seeking asylum under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).
 The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti, on the basis of his membership in a particular social group, namely Haitian men who are HIV-positive.
 The Panel therefore finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.
SUMMARY OF ALLEGATIONS
 The Claimant’s detailed allegations are contained in his Basis of Claim form (BOC).
 In summary, the Claimant fears for his life if he were to return to Haiti, as he is HIV- positive and the legal and socio-cultural environment of Haiti is hostile and even violent towards individuals with HIV, such that they may be attacked or discriminated against, may be denied medicine, food and shelter, and will not receive police protection.
 The Claimant left Haiti around 1999 due to threats against him related to a family dispute and threats from his girlfriend’s brother, and went to the Dominican Republic, where he remained for 12 years under temporary residence visas that he kept renewing.
 He then met an American woman of Haitian origin and they married, before moving to the United States (U.S.) together in [XXX] 2012. The Claimant had the status of a conditional resident of the U.S., which was based on his marriage to a U.S. citizen. This status allowed him to receive a U.S. permanent resident card in [XXX] 2012 that was valid until [XXX] 2014.
 The relationship deteriorated, as the Claimant alleges that he was the victim of abuse by his wife and her adult son. His wife kicked him out of the house, and he found himself homeless.
 In 2014, the Claimant became ill and went to a hospital, where he was diagnosed with HIV.
 The Claimant applied for the renewal of his U.S. conditional resident status on its expiry. He then applied to remove the conditions of his residential status in 2016, by submitting various documentation to the U.S. authorities in an attempt to demonstrate that he had been in a good-faith marriage that had ended due to abuse, including a personal statement to explain his situation, a police report regarding an incident with his wife’s son, a letter from a [XXX], three affidavits in support of his application, and the marriage certificate.
 The Claimant received a notice in [XXX] 2017 from the U.S. authorities that required him to submit additional documentation in support of his application, including proof of children of the marriage, proof that he and his wife had a common residence, a joint bank account statement with his wife and any joint financial planning arrangements. As the Claimant had no children with his wife, had been kicked out of the house, was in fact homeless and did not have a joint bank account with his wife, he had no additional documentation to provide.
 The notice informed the Claimant that he must provide the additional documentation by [XXX] 2017 and that if he failed to do so, his application could be denied. As the Claimant did not believe that he could obtain any further documentation to satisfy the request, fearing deportation, he left for Canada in [XXX] 2017.
 The Claimant claimed asylum here in [XXX] 2017.
 The personal and national identity of the Claimant is established, on a balance of probabilities, by the documentary evidence on file, specifically his Haitian passport.
Exclusion 1E: Status in the United States
Intervention by Minister
 The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened in writing and in person at the hearing, regarding a possible exclusion under section 1E of the Convention.
 The Minister submitted that the Claimant should be excluded under section 1E due to his conditional resident status in the U.S., which they submit is a status with rights similar to that of nationals in the U.S., because he had left the country before receiving a confirmation as to whether or not that status had been revoked, after having taken appropriate action to remove the conditions associated with his conditional resident status.
 The Minister’s position is that because the Claimant did not wait to receive a conclusive response regarding his status and did not return to the U.S., he should be considered to have voluntarily abandoned his conditional resident status in the U.S.
 The Minister also submitted that the Claimant showed an absence of subjective fear that undermined his credibility, due to his decision to leave the U.S. and not return.
Status of the Claimant in the United States
 The Claimant lived in the U.S. from [XXX] 2012 to [XXX] 2017. He was granted conditional resident status there in [XXX] 2012, which had been set to expire in 2014, but was then renewed and extended in [XXX] 2016 for another year.
 According to the national documentation package for the United States, conditional residents have the right to work without restrictions, to study, to access social services, to leave and return without requiring a visa. This information was also reflected in the exhibits of the Minister relevant to this issue.
 The Panel finds that the Claimant, as a conditional resident in the U.S., had rights that were substantially similar to those of nationals of that country.
Claimant’s Lass of Status in the United States
 The Claimant’s conditional resident status had been extended until [XXX] 2017, prior to him receiving a notice in [XXX] 2017.
 The [XXX] 2017 notice indicated to the Claimant that if he did not provide additional documentation in support of his application to remove the conditional status of his residence, his “case may be denied.”
 The Claimant left the U.S. in [XXX] 2017.
 Conditional residents who travel abroad for an extended period of time may apply for a re- entry permit prior to leaving the United States, which the Claimant did not do.
 Conditional residents who fail to apply for a re-entry permit and who have lived outside the U.S. for more than two years may apply for a returning visa outside the country, but are not guaranteed admission into the U.S.
 Given that the Claimant had left the country in [XXX] 2017 and given that his conditional resident status had only been extended to [XXX] 2017; given that the Claimant had applied to remove the conditions of his status, but had been told to provide further documentation that he then did not provide, failure to do so was advised that his application could be denied; given that the Claimant did not apply for a re-entry permit before leaving the U.S.; given that the Claimant did not apply for a re-entry permit after leaving the U.S., and more than two years have passed; the Panel finds that, on the balance of probabilities, the Claimant had lost his conditional resident status on the day of the hearing.
 The Panel must therefore examine the factors set out in Zeng, and consider the reason for the Claimant’s loss of status (voluntary or involuntary) in the United States; whether he could return to the country, the risk that he would face in his home country of Haiti, Canada’s international obligations, and any other relevant facts.
 The Claimant alleges that he left the U.S. after trying to stabilize his status there, by submitting an application and supporting documentation in order to remove the conditions of his residence there.
 The Claimant had submitted the following documents in support of his application: a personal statement; a police report; psychotherapy and counselling letters; three affidavits; a document indicating his residence; a budget letter; medical records; photographs; and his marriage certificate.
 The Panel considers that the efforts put in by the Claimant to regularize his status in the
U.S. by renewing his conditional resident status, then by applying to remove the conditions on his residence, were reasonable. He prepared the necessary paperwork and provided numerous documents in support of his application.
 The Panel considers that the decision of the Claimant to leave the United States, in the face of being advised that his application could be refused for not providing additional documentation, was reasonable due to his inability to provide the additional documentation requested by the authorities: he and his wife did not have children, so he could not provide any documents in that regard; he had been kicked out of the matrimonial home and did not have any documents that indicated his name was associated with the matrimonial home, as he had testified that the home was leased in his wife’s name; the Claimant did not have a joint bank account with the wife; and finally, the Claimant and his estranged wife had not made any joint financial arrangements.
 It is therefore entirely reasonable that the Claimant would consider that he did not have the required documentation in order to finalize his claim for status in the U.S. The Panel finds that his decision to leave was based on his understanding that, on the balance of probabilities, his claim would be denied due to a failure to provide the additional documents. His failure to apply to re enter the U.S. is also found to be reasonable when looking at the facts through this spectre.
 The Panel finds that the departure of the Claimant can therefore be deemed involuntary, as he believed that his failure to provide further documentation to the U.S. authorities would lead to his status being denied and his deportation back to Haiti. The Panel finds that in the context that the Claimant believed himself, on the balance of probabilities, to face deportation from the U.S. for the reasons just described, it is reasonable to believe that the Claimant believed that he had no choice but to leave.
 The Panel finds that the Claimant is credible with respect to his allegations of fear of return to Haiti as an individual who is HIV-positive. The Claimant’s testimony regarding his reaction to finding out that he had HIV and his resulting alienation from family members in Haiti, including his sister who stopped talking to him after learning that he was HIV-positive, was credible and consistent with the socio-cultural environment in Haiti for HIV-positive individuals, as indicated in the national documentation package for Haiti.
 When considering Canada’s international obligations, the Panel finds that the Claimant would face the serious possibility of persecution in Haiti based on his HIV status, as discussed more fully below, and that this engenders refugee protection.
 The Panel therefore considers that Canada would be respecting its international obligations under the Convention by granting the Claimant asylum due to his credible allegations regarding his loss of status in the U.S. and his fear of return to Haiti.
Conclusion regarding Exclusion
 The Panel therefore concludes that the Claimant is not excluded under section 1E of the
Nexus to the Convention
 The allegations of the Claimant establish a nexus to the Convention. He faces persecution based on his membership in a particular social group, which is HIV-positive Haitian men.
 His claim, therefore, has been analyzed pursuant to section 96 of the IRPA.
 The Panel will only discuss the Claimant’s credibility with respect to his allegations regarding his HIV status, as this status is sufficient to meet the requirements of the IRPA. It is therefore not necessary to analyze the other allegations for the purpose of his claim.
 The Panel finds that the Claimant is credible for the following reasons:
 Testimony provided under oath is presumed to be truthful unless there is a reason for doubting its truthfulness. In this claim, the Panel has no such reason.
 The Claimant provided detailed testimony regarding the circumstances under which he discovered himself to be HIV-positive, as well as producing documentary evidence. He also testified in a straightforward fashion about the impact this status had on his relationship with his family members in Haiti, as well as the treatment that he would expect should he return to Haiti, including violence, due to widespread cultural prejudices against those with HIV.
 The national documentation corroborates the testimony of the Claimant. One source indicates that there are “well-documented cases of people living with HIV/AIDS who experience stigma and discrimination and who are denied services because of their HIV status in the workplace, in education and health care, and even in communities where there are people living with HIV”. Furthermore, the objective documentary evidence indicates that the rights of those with HIV are violated in other areas as well, including with respect to non-discrimination, housing, care, social security, assistance and well-being.
 The country conditions are such that there is no legal protection in Haiti against discrimination based on HIV-positive status.
 Prejudice against people living with HIV is prevalent in Haiti, as indicated by a 2012 survey that indicates 57.7 percent of adults would not buy vegetables from a shopkeeper or vendor if they knew that the person had HIV. 61 percent of women and 55 percent of men reported discriminatory attitudes towards people living with HIV.
 The attitudes and treatment of people in Haiti living with HIV are connected to the overall prejudice in that country against those perceived to be homosexual, which is why those who seek treatment for HIV also face the danger of violence based on that perception of their sexual orientation: “even the mere suspicion of homosexuality may trigger violence”.
 Furthermore, beyond the absence of a law that prohibits discrimination against those with HIV, there is a lack of police protection for those perceived to be engaging in same-sex acts: “Haitian authorities do not generally respond when faced with violent acts against individuals who are sexual minorities.”
 The objective documentary evidence indicates at length that anyone perceived as homosexual faces violence not only by other civilians but by police as well. The country conditions are replete with examples of people who seek police protection in Haiti for acts directed at them because of their perceived sexual orientation and are often ridiculed by police, who may either refuse to file a report or may even further victimize and humiliate them, including with physical assaults.
 The country evidence therefore demonstrates that the Claimant faces a serious possibility of persecution in Haiti, based on his membership in a particular social group, specifically HIV positive Haitian men.
 For all of these reasons, the Panel finds that the Claimant’s allegations are credible.
 The Panel, therefore, finds that the Claimant has established, on a balance of probabilities, that he faces the serious possibility of persecution if he returns to Haiti, based on his membership in a particular social group, that of HIV-positive Haitian men. The Panel finds that the Claimant has established, on a balance of probabilities, that he is HIV-positive, which he discovered when he went to a hospital in the U.S. after falling ill in 2014.
 The Panel concludes that the Claimant faces a forward-looking serious possibility of persecution based on the aforementioned findings.
 Considering the evidence previously stated that discrimination against people with HIV is not legally prohibited in Haiti, in addition to the objective documentary evidence as discussed regarding the tendency of the police to tum a blind eye to violence against those perceived to be a sexual minority in Haiti, or even sometimes themselves be the perpetrators of violence against those perceived to be a sexual minority in Haiti, the Panel finds that state protection would not be available to the Claimant, if he were to approach the state for protection.
 The Panel concludes that the Claimant has provided clear and convincing evidence that has rebutted the presumption of adequate state protection.
Internal flight alternative
 The Panel finds that the Claimant faces a serious possibility of persecution throughout Haiti.
 The country evidence before the Panel is that violent and hostile attitudes towards HIV positive individuals are prevalent throughout the country. The Panel finds that there is nowhere in Haiti the Claimant could relocate that would be safe and reasonable, due to his HIV status.
 There is, therefore, no viable internal flight alternative for the Claimant anywhere in Haiti.
 For all of these reasons, the Panel finds that the Claimant has established a subjective fear of return to Haiti that is objectively well-founded.
 The Panel concludes that the Claimant has established that he faces a serious possibility of persecution in Haiti in accordance with section 96 of the IRPA.
 The Panel, therefore, finds that he is a “Convention refugee” pursuant to section 96 of the IRPA and accepts his claim.
 Document 2 — Basis of Claim Form (BOC).
 Document 1 — Package of information from the referring Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC): Passport.
 Document 6 — Minister’s Notice of Intervention and Exhibits M-1 to M-6.
 Document 5 — National Documentation Package, United States, 31 January 2020 (NDP USA), tab 3.2: The Immigrant Visa Process, United States, Department of State;
Document 5 — NDP USA, tab 3.4: Report on Citizenship Law: United States of America, European University Institute, European University Democracy Observatory on Citizenship, Peter J. Spiro, July 2015.
 Document 6 — Exhibits M-3, M-4 and M-5.
 Document 7 — Exhibit D-2.
 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118.
 Maldonado v. Canada (Minister of Employment and Immigration),  2 F.C. 302 (C.A.).
 Document 8 — Exhibit D-4.
 Document 3 — National Documentation Package, Haiti, 30 September 2019 (NDP Haiti), tab 1.12: Response to Information Request, HTI106236.FE, Immigration and Refugee Board of Canada, 4 March 2019.
 Supra, note 11.
 Document 3 — NDP Haiti, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2018, United States, Department of State, 13 March 2019;
Document 3 — NDP Haiti, tab 2.3: Report of the Independent Expert on the situation of human rights in Haiti, United Nations, Human Rights Council, 8 March 2017.
 Supra, note 11.
 Document 3 — NDP Haiti, tab 14.1: Response to Information Request, HTI106204.FE, Immigration and Refugee Board of Canada, 29 November 2018.
 Document 3 — NDP Haiti, tab 6.1: Response to Information Request, HTl104591.FE, Immigration and Refugee Board of Canada, 27 September 2013;
Document 3 — NDP Haiti, tab 6.2: Fighting for our Lives: Violence and Discrimination against Women and LGBT Persons in Haiti, ANAPFEH et al, October 2014;
Document 3 — NDP Haiti, tab 6.3: Supplementary information on Haiti regarding the treatment of lesbian, bisexual and transgender (LBT) persons and violence against women’s human rights defenders, FACSDIS et al, 12 June 2015;
Document 3 — NDP Haiti, tab 6.4: Haiti : La situation des minorités sexuelles et de genre, France, Office
français de protection des réfugiés et apatrides, 10 May 2016.